Regina -v- Johnstone [2000] NSWCCA 129

New South Wales Court of Criminal Appeal

CITATION : Regina -v- Johnstone [2000] NSWCCA 129 FILE NUMBER(S) : CCA 60355 of 1999 HEARING DATE(S) : 12/04/00 JUDGMENT DATE : 12 April 2000

PARTIES : Regina Dean Andrew Johnstone JUDGMENT OF : Dowd J at 1; Hulme J at 19

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/31/0120 LOWER COURT JUDICIAL Coleman DCJ OFFICER :

COUNSEL : Mr Berman - Crown Mr Manuel - Applicant SOLICITORS : S E O'Connor - Crown J Manuel - Applicant CATCHWORDS : Sentence appeal - Robbery whilst armed with an offesive weapon - Failure to give sufficient credit for plea and cooperation LEGISLATION CITED : Crimes Act 1900 CASES CITED: R -v- Ellis (9186) 6 NSWLR 603 DECISION : Leave granted; Sentence imposed on the first and second count quashed

IN THE COURT OF CRIMINAL APPEAL

60355/99

HULME J DOWD J

WEDNESDAY 12 APRIL 2000

REGINA v DEAN ANDREW JOHNSTONE

1 DOWD J: This application for leave to appeal is in respect of three counts of robbery whilst armed with an offensive weapon, contrary to section 97(1) of the Crimes Act 1900 ("the Act"). Each offence carries a maximum penalty of penal servitude for twenty years. 2 The applicant pleaded guilty before Coleman DCJ at the Newcastle District Court and was sentenced to a minimum term on the first count of three years and six months penal servitude, and an additional term of two years, on the second count, four years minimum term and an additional term of two years and six months and on the third count a minimum term of four and a half years and an additional term of three years. The sentences being imposed in that fashion as an application of the R v Pearce 1998, 72 ALJR, at 1416. The application is made on several bases. The first ground being that the sentencing judge failed to take into account the applicant's voluntary admissions in relation to the first two offences and did not have regard to the principles contained in R v Ellis, 1986, 6 NSWLR at 603. 3 The second ground is in effect an extrapolation of that ground which is in failing to properly consider the applicant's confessions his Honour derogated from the significance of the guilty pleas. 4 The facts of the matter have been extensively set out in a very careful judgment by his Honour Coleman DCJ in his remarks on sentence of 19 May 1999. However the offences which were similar in nature involved the applicant being armed with a blood-filled syringe and robbing his victims cash. The second offence, some six days later, when armed similarly with a blood-filled syringe the applicant robbed a male person of $370 from a pharmacy, and the third offence occurred the following day on 24 January in that he robbed a young woman of $435 from a chain store. 5 Each of the offences involving a blood-filled syringe must have been for each of the victims extremely serious and terrifying incidents. The prevalence of this offence is serious. The effect is quite catastrophic and people should be able to go about their normal commercial lives without having this sort of offence inflicted on them. For that reason the legislature has seen fit to place a very high penalty of twenty years for each offence. 6 As his Honour said on sentence at page 3 of his Remarks On Sentence, in relation to the first matter, "The fear and dread that was induced in the young shop assistant is a matter that cannot be ignored and the need to deter this type of offence is something which must be borne in mind. Similarly for the other two offences".